Strachan v Colourwise Nursery (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Strachan v Colourwise Nursery (NSW) Pty Ltd [2025] NSWPIC 328
APPLICANT:	Deborah Lee Strachan
RESPONDENT:	Colourwise Nursery (NSW) Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	10 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); knee injury in 2014 but no claim for compensation until 2021; section 261 of the 1998 Act - Hou v Zhen Qui Hou Pty Ltd; section 261(9) – register of injuries; ignorance - Eason v Bluescope Steel Limited and Gregson v L & M Dimasi Pty Ltd; other reasonable cause - Albury Real Estate v Rouse, Garrett v Tooheys Ltd, and Jones v Qantas Airways Pty Ltd; serious and permanent disablement - Broken Hill Proprietary Company v Kuhna; incapacity; Held – award for weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	1. The respondent is to pay the applicant weekly compensation of $659.80 as indexed from 4 June 2021 until the end of the second entitlement period. 2. I grant liberty to apply if the parties are unable to agree on the compensation payable as a result of order 1. 3. Pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), the respondent is to pay the applicant’s past medical, hospital and related expenses. 4. Pursuant to s 60 of the 1987 Act, the respondent is to pay the applicant’s costs of and incidental to left total knee replacement surgery.

STATEMENT OF REASONS

BACKGROUND

Deborah Strachan was employed by Colourwise Nursery (NSW) Pty Ltd (Colourwise) when she suffered an injury to both of her knees on 1 December 2014. Ms Strachan continued to work for Colourwise until April 2020, when her employment was terminated.
Ms Strachan did not make a formal claim for compensation until 1 February 2021 when she lodged a claim form.
There is now no dispute that the incident occurred on 1 December 2014 in which Ms Strachan fell onto both of her knees. There is also no dispute that the surgery that Ms Strachan has undergone and proposes to undergo is reasonably necessary medical treatment but Colourwise disputed that it is because of an injury within the meaning of the Workers Compensation Act 1987 (the 1987 Act). The parties agree on pre-injury average weekly earnings.
Until the conciliation conference on 5 June 2025, Colourwise disputed that Ms Strachan gave notice of her injury in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The issues which remain in dispute are:
(a) the application of s 261 of the 1998 Act, and
(b) the extent of any incapacity for work.
Section 261 of the 1998 Act relevantly provides:
“261   Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     ...
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) – (8)    …
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 5 June 2025 when Mr Barter of counsel appeared for Ms Strachan and Mr Stiles of counsel appeared for Colourwise.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
In the course of preparing my decision, I observed that the parties had not made submissions about whether a contemporaneous report of the injury was an entry in a register of injuries for the purpose of s 261(9) of the 1998 Act. On 19 June 2025 I directed that the parties provide submissions in respect of the issue within seven days and any reply submissions within seven days. Mr Barter prepared further submissions which were filed on 24 June 2025. No submissions were filed on behalf of Colourwise.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD), and
(b) Reply.
There was no oral evidence.

Ms Strachan

Ms Strachan’s former surname is Braithwaite, shown on the contemporaneous documents. She lodged a claim form on 1 February 2021 in respect of an injury to both knees. She said that she completed an injury notification form on 1 December 2014 and reported the injury to the “OH&S officer” Mary Galea on the same day. She said that she did not report the injury because “I was actively discouraged from making a claim and bullied by my boss. I was given “warning letters”. In the form she provided the names and phone numbers of three people who witnessed the incident and two other witnesses. After Ms Strachan lodged her claim form, she was paid some weekly compensation under provisional liability and an investigation was undertaken.
In the statement to the investigator dated 31 March 2021, Ms Strachan said that she commenced work in 1999 when the business was owned by Mr Collins. It was later sold to Malcolm Thompson. He terminated her employment on 1 April 2020, saying it was a result of the impact of the COVID-19 pandemic.
Ms Strachan described her role and training. She described the injury as being to her right knee. Ms Galea bandaged it and gave her a Personal Injury Investigation Report form and asked her to leave it on the desk in the despatch office. Ms Strachan completed the form and said that Anne Moret was in the office when she left it on the desk. Ms Galea bandaged her knee. Ms Strachan did not obtain a copy of the form until late June 2015 and she noted that no one from management had signed it.
Ms Strachan described the injury in more detail later in the statement and said that only her right knee was bleeding. She did not seek medical attention though did work on selected duties for about two weeks.
By May 2015 Ms Strachan found that her right knee was becoming more painful and causing her to limp. She took a chair to work so that she did not have to stand all day.
On 22 June 2015 Ms Strachan told her general practitioner, Dr Crampton, that she was feeling pain in her right knee which was getting worse. She told him about the injury and he recommended making a workers compensation claim. She said she was “reluctant to go down this road” because she was aware of her employer’s attitude to claims and the experience of another worker. He referred her for X-rays.
Ms Strachan’s right knee continued to deteriorate and she had an incident of stabbing pain in her right knee when she was not at work. She took a stick to work on the following day. The production manager, Mr Turner, asked her to go to Mr Thompson’s office. Mr Thompson said that she should not be at work with a stick and that she “should be replaced”. She said Mr Thompson and Mr Turner started “talking about compensation, insurance premiums and legal action”. Mr Thompson then “alluded to a document that was on his computer” and said that Ms Strachan was being given a warning about an interaction with another staff member. He did not give Ms Strachan a copy of the letter nor provide details.
Mr Thompson then told Ms Strachan that it was “too late to go for work cover”. Ms Strachan said that she “needed to be reassured that I wouldn’t lose my job” while her pain was being evaluated. She said in her statement that she felt that his comments were intimidating and bullying. On the following day Mr Turner asked her to sign a statement saying the injury occurred outside of work hours, and Ms Strachan refused.
On 10 August, Dr Crampton referred Ms Strachan to Dr Qurashi.
On 21 August 2015, Mr Turner again insisted that Ms Strachan sign a letter and he became angry. Ms Strachan felt intimidated and refused to sign. Ms Strachan’s now husband and then co-worker was asked to sign a document saying she had received the letter, which he did. The letter said that she was to keep off her knee and sit as much as possible, and that a revised job description was available. Later that day, Mr Thompson called Ms Strachan into a meeting and said that she was not to be at work until her knee was better. She ceased work on 21 August 2015, and she was informed of her leave entitlements. She saw Dr Qurashi who recommended surgery and said:
“On this same day I phoned a lawyer and Workcover. However I did not obtain comprehensive legal advice or pursue workers compensation at this time because I was very worried about losing my job.
…
On the 3^rd September 2015 I spoke with Malcolm and informed him that I was not pursuing work cover as it was too stressful and I would be paying out of my own pocket to have surgery on my right knee. As soon as I informed Malcolm of this, he told me that I could return to work.”
Ms Strachan underwent an arthroscopy on 7 October 2015. She returned to work when she had used all of her leave entitlements on 2 November 2015. Two days later, Mr Thompson told her he was issuing a second warning on the basis that staff had complained about her and staff “were leaving because of” her. On that day he gave her two warnings dated 3 August 2015 and 4 November 2015.
Ms Strachan continued to work. The workplace relocated to Peats Ridge, and she was struggling. In February 2017, she reduced her hours to three days per week, because of pain, and because she said she felt victimised by Mr Thompson. Ms Strachan described her further medical treatment, including a partial right knee replacement on 17 August 2018 and her return to work after 15 weeks. She described the termination of her employment. She said that in January 2021, she sought legal advice about workers compensation.
Ms Strachan said:
“Until I had legal advice earlier this year. I only had a very basic understanding of workers was compensation. I did not know what my entitlements were or what my employer’s obligations were regarding workers compensation. I did not know I may have been eligible for treatment such as physiotherapy and have my surgery in a private hospital without waiting 12 months or that I may have been eligible to be paid weekly workers compensation whilst I was off work and recovering some surgery, or that I had may have been eligible for post surgery. Rehabilitation at home help.”
Ms Strachan described the impact of the injury as well as non-work-related factors on her mental health.
Ms Strachan prepared a further statement dated 21 November 2024 with the assistance of her solicitor. She said that Mr Thompson bought the business in about 2006 and that the culture of the business began to change when Mr Turner commenced in 2014. She said:
“I had previously injured my left shoulder at Colourwise in 2005. I had given notice of the injury and there were no difficulties in the claim being lodged. I had treatment and was off work a bit and then returned. The insurer EML paid my doctors, physio and when I was off work. It was all very straight forward.”
She said:
“I felt pressured not to pursue a claim. I had seen Malcolm poorly treat other injured workers. I was financially dependent on my employment. I was single at the time and had a mortgage.”
Ms Strachan confirmed details in her previous statement, though she said that Mr Thompson cut back her hours in 2017 because he said her workmates were complaining about her. She attached a number of documents including the Personal Injury Investigation Report dated 1 December 2014. The form records the date and location of the injury and the injured person’s name. In response to the question “Nature of injury – seriousness; required hospital etc” Ms Stachan wrote “no hospital. 2 (two) scraped knees.” She said that the cause of the incident was a fall as a result of a pallet being left on concrete. The remainder of the form sought information as to the cause of the incident and the action to be taken to prevent recurrence. Ms Strachan said that her employer “did not lodge it or give me a workers compensation application.”
Ms Strachan completed a document headed “Colourwise Nursery (NSW) Pty Ltd Personal Injury Investigation Report (Form AI03)”. Ms Strachan recorded information in boxes on the form. For ease of reading, I have set out the handwritten information in italics:
“Date 1.12.14 Company Site: DESPATCH
Location of accident on site: On concrete entry to despatch (near gravel)
Injured Person’s Name Deb Braithwaite
Nature of injury – seriousness; required hospital etc
no hospital. 2 (two) scraped knees
Part of body injured: Both Knees
Nature of incident: FALL Was it a Near Miss? Yes/No (No is circled)
Object/equipment/substance that inflicted injury/damage:
Pallet left on concrete
Who had control of these: (not answered)
From your investigation state clearly how the accident occurred:
I was carrying a tray of 12 tall mona lavenders to pack onto vellex racks and fell over the pallet that was in my path to the rack.
What contributed to this accident:
The pallet left on the concrete.”
The remainder of the form deals with prevention and the copy in the ARD is not filled in.
The other documents attached to Ms Strachan’s statement include a file record of the meeting dated 4 August 2015 which recorded that Ms Strachan agreed that the injury to her right knee was sustained outside work hours. It was not signed by her. Ms Strachan attached the warning letter dated 3 August 2015, which she received for the first time on 4 November 2015. She also attached the second letter. Each of those letters refers generally to her “attitude” and “approach to work”, without providing examples.
Ms Strachan also relied on a statement made to an investigator on 11 February 2016 in respect of a claim by Hannah Catt. Ms Strachan described the injury on 1 December 2014 and the development of an ache in 2015. She said that she had been bullied into not making a workers compensation claim and was asked to sign a document saying that the injury was not suffered at work. She was given a warning during the same meeting . She said she did not submit a claim because she was afraid of losing her job. She said that she was given a second warning on the day after her return to work after surgery.
Michael Strachan provided a statement. He said he married Ms Strachan in 2020 and that he recalled the day of the injury. He said there was a “culture” at Colourwise that staff did not make claims for compensation. Mr Thompson regularly complained about the cost of his workers compensation premiums and was reluctant to pay for anything he did not have to pay for. Mr Strachan said that staff were not paid overtime rates but given time in lieu at ordinary rates. The business was located at Glenorie and there were not many employment opportunities in the area so that staff put up with the conditions to have a job near home. The work was seasonal and when it was busy in spring and summer, Colourwise employed 50 to 60 people. Mr Strachan no longer works at Colourwise.
Marie Galea made statement on 6 March 2024. She worked at Colourwise until 2015 and saw Ms Strachan on 1 December 2014 in her capacity as first aid officer. She gave a form to Ms Strachan to complete and she filled out another part of the form, which she would have taken to the office. In the period that followed before Ms Galea left Colourwise in March, Ms Galea recalled Ms Strachan complaining about her knee. She said that there were not many local employment opportunities so that workers put up with a lot to keep their jobs. She also heard Mr Thompson complain regularly about his workers compensation premiums.

Colourwise

Colourwise did not rely on any statement evidence. In particular, there is no statement from either Mr Thompson or Mr Turner.
A “file record” dated 4 August 2015 reads:
“On 3^rd August 2015 Deborah Braithwaite came to work limping and using a walking stick. Malcolm Thompson and Cambell Turner met with Deborah to discuss the cause of the incident. Deborah explained that the injury was to her right knee and was sustained outside of work hours from general day to day activities. Deborah said she will need to get the knee operated on and asked for some time off work to have the procedure as well as some recovery time. Deborah has approx. 3 weeks sick leave owing and Colourwise are more than happy for her to use this as her recovery time.”
The document set out some “light duties” to “help remove the load from her knee.” Ms Strachan was to “remain on light duties until after the operation and has fully recovered.”
An email to Colourwise’s accountant, Ms Lipp, dated 21 August 2015 confirms that Mr Thompson asked Ms Strachan to take sick leave until she was fit and healthy and sought advice from the company accountant as to her leave entitlements.
On 7 September 2015 Mr Turner sent Mr Thompson an email attaching a report from Dr Qurashi dated 25 August 2015. Dr Qurashi said that Ms Strachan was “fit for duties that she felt comfortable doing”.
Mr Thompson sent Dr Qurashi’s report to Colourwise’s insurer in an email dated 7 September 2015 saying that he believed Ms Strachan was “looking to activate a workers comp claim over a knee injury she claims occurred last year.” He said that Colourwise had stood Ms Strachan down on sick leave when she came to work with a walking stick two weeks before. Ms Barnes of the insurer replied on the same day saying that if Ms Strachan said that she believed she suffered an injury then Colourwise was required to submit a claim but that if Ms Strachan acknowledged it did not occur at work and she returned to work and suffered an aggravation, then a claim would need to be lodged in respect of that aggravation. Mr Thompson said that Ms Strachan has not confirmed it was the result of an injury and that he “will keep a close eye on her to be sure we do not expose ourselves to a more serious injury.” Ms Barnes replied that Mr Thompson was “on the right track and on top of this matter.”

Medical evidence

Counsel did not refer to the medical evidence in detail.
The extract from Dr Crampton’s notes commences on 29 November 2013 when Ms Strachan saw Dr Brivulis about pain in the right shoulder, among other things. A workers compensation claim was discussed at that and the subsequent consultations.
Dr Crampton saw Ms Strachan on 22 June 2015 and recorded a history of a right knee medial meniscus strain “?from various falls.” In August 2015 he noted the issues raised in the workplace about the injury.
Dr Qurashi undertook a partial medial meniscectomy in October 2015. Dr Crampton, and the other doctors in the practice, recorded complaints of knee pain at most consultations in 2016 and 2017 and again from mid 2018.

Ms Strachan returned to work but said in her statement that she did not return to pre-injury duties. When Colourwise moved to Peats Ridge in 2016 she reduced her hours. She reduced them again in 2017 and said it was because of pain in her right knee, as well as feeling victimised by Mr Thompson.
Dr Crampton referred Ms Strachan to Dr Stening who, on 16 June 2017, diagnosed advanced osteoarthritis of the right knee as a consequence of rapid deterioration of mild pre-existing change following the meniscenctomy. He recommended an MRI scan of Ms Strachan’s left knee and an intra articular cortisone injection. He placed Ms Strachan on the waiting list for a medial, unicompartmental right knee replacement. That surgery was performed on 17 August 2018.
Ms Strachan saw Dr Crampton on several occasions for wound care. On 24 September 2018 Dr Crampton recorded that “Work is requiring a RTW cert when ready for full duties (normal duties standing walking all day 8hws 3d/wk.” Dr Crampton said on 22 October 2018 that Ms Strachan would aim for a gradual and partial return to work from November.
In January 2019 Dr Crampton recorded that Ms Strachan was “managing to cope with chair/sit/stand as required”. The first reference to left knee pain was on 26 September 2019. The consultations immediately following the termination of Ms Strachan’s employment in April 2020 focus on mental health and intercurrent conditions. On 25 January 2021, Dr Crampton issued a certificate of capacity in respect of the fall in 2014.
On 19 April 2021 Ms Williamson, psychologist, wrote to Dr Crampton and said that she had been treating Ms Strachan for anxiety as a result of the injury and the loss of her job as well as family stressors. Ms Williamson ceased to treat Ms Strachan when she sought to claim in respect of her injury “as I was no longer wanting to work with work cover cases.”
In 2022 Dr Crampton referred Ms Strachan to Dr Gursel who recommended left total knee replacement. He obtained a history of the injury in 2014 and ongoing symptoms. On 16 March 2023 Dr Gursel wrote:
“The mechanism of the injury was that on 1 December 2014, whilst carrying a tray of plants, Mrs Strachan fell heavily onto her knees, when she tripped over a pallet that was not supposed to be in her path.
She subsequently had investigations and management to deal with the intra-articular damage and the meniscal tears, ultimately requiring a partial knee replacement, performed by Dr Stenlng in 2018, on the right side. She has gone on to develop significant arthritis In her knees and is in pain, making it difficult for her to perform her activities of daily living, Including caring for herself.
Mrs Strachan is at a stage where her symptoms, clinical examination and investigations are all consistent with post traumatic arthritis related to her work injury. She needs to have a left total knee replacement as this Is her most symptomatic joint and once she has recovered, her unicompartmental replacement revised to a total knee replacement.”
The total knee replacement surgery has not been undertaken.

Medico-legal reports

Ms Strachan’s solicitor arranged examinations by Dr Conrad, both of which took place by video consultation. In his report dated 29 July 2021 Dr Conrad accepted that Ms Strachan suffered a significant injury to her right knee on 1 December 2014 and some trauma to her left knee. He recommended conservative treatment though foreshadowed a partial left knee replacement. He said:
“With regard to her work capability, she would not be able to work in a nursery as a nursery hand as she did at the time of her accident. At most, she may be able to do 12-15 hours per week of very sedentary work in a position where she is able to stand or sit at will, not lift anything more than 5 kg in weight, not do a lot of standing, walking, going up and down stairs, squatting or kneeling. This could be light sales work or light cleaning work or similar work within the above parameters.”
In his second report dated 20 October 2023, Dr Conrad said that Ms Strachan had pain in both knees with the left more affected than the right. He confirmed that the injury in 2014 was a significant injury and that the torn meniscus was traumatic, leading to two operations. He agreed with Dr Gursel that surgery to both knees was reasonably necessary and urgent. Dr Conrad said that Ms Strachan was not fit for “any work for which she is suitable by way of experience and training until her knee replacement operations have been finalised and she has made a good recovery.”
Dr Coolican reported to Colourwise’s insurer on 1 April 2021. He accepted that Ms Strachan suffered a direct blow to the front of her knee and that it was likely that she damaged the patello femoral joint but did not injure the meniscus. She then developed medial compartment arthritis which was accelerated by the meniscectomy, necessitating partial knee replacement. He accepted that the symptoms did not fully resolve before the arthroscopy but could not see an indication for the arthroscopy.
In a subsequent report dated 14 May 2021, Dr Coolican said:
“Some of Deborah's ongoing incapacity is a direct result of the fall on 1^st December 2014. In particular, her restricted mobility, difficulty with activities that involve bending as well as the cracking and swelling of the knee are a result of the fall. However, the majority of her symptoms are not related to the fall but are due to degenerative changes.”

And:

“In my opinion, any, symptoms that Ms Strachan has with her left knee are unrelated to the fall of 1st December 2014. Ms Strachan's left knee symptoms include pain around the medial side associated with standing and walking which is due to early medial compartment wear. These symptoms are unrelated to the fall of 1^st December 2014.”

SUBMISSIONS

Ms Strachan

Mr Barter said, first, that Ms Strachan made a claim for compensation within time. In the alternative, he said that Ms Strachan suffered serious and permanent disablement and that she did not bring the claim in time because of ignorance or other reasonable cause, the reasonable cause being the fear of losing her job if she made a claim.
With respect to the first proposition, Mr Barter said it was agreed there was no formal claim but there was a complaint to Colourwise and the completion of a document headed “Personal Injury Investigation Report” which was consistent with the complaints that she has made since. He said that Ms Strachan was not to know that it was not a claim for compensation and Colourwise thought that it was because of the email that Mr Thomson sent to the insurer on 7 September 2015.
Though there was no medical certificate in the file, Ms Strachan’s statement confirmed that she had continued to suffer the effects of the injury suffered in 2014. Mr Barter said that report of injury was, to all intents and purposes, a claim for compensation within time.
In the alternative, Mr Barter submitted that it was reasonable that Ms Strachan did not make a claim when she was afraid of losing her job, not knowing much about workers compensation and that she should not in fact be jeopardising her position. Mr Barter said that Ms Strachan had consistently said she was afraid of losing her job if she was not compliant and she therefore agreed that the injury was received outside work. She had good reason to be fearful because she was told that a warning letter was issued on 3 August 2015, even though she had not received a copy.
Mr Barter referred to the statement Ms Strachan made in respect of the claim made by Ms Kent which confirmed her fear of losing her job, confirmed that she was carrying an injury between December 2014 and August 2015 and that she had been bullied into not making a claim. The fact that she was incapacitated to an extent was corroborated by Colourwise agreeing that Ms Strachan was carrying an injury but denying that it was work-related.
With respect to incapacity, Mr Barter said that Ms Strachan’s statement contained the evidence as to her level of incapacity for the periods claimed.

Colourwise

Mr Stiles said that I would not accept the submission that the email correspondence between Colourwise and the insurer in September 2015 was notice of injury and of a claim. “Claim” is defined in s 4 of the 1998 Act to be a claim for compensation and compensation is defined as compensation under the 1987 Act or a monetary benefit. Section 261 requires a claim for a monetary benefit and but Ms Strachan did not make such a claim until 25 January 2021 when a certificate of capacity was lodged. The email correspondence in 2015 did not claim a monetary benefit. There was no claim until six years after the injury.
Mr Stiles took me to Ms Strachan’s statement that in June 2015 her general practitioner recommended workers compensation but she was reluctant to make a claim because of the experience of another worker. Mr Stiles said that Ms Strachan was aware that she could make a claim but did not want to. Dr Qurashi also discussed workers compensation when he recommended surgery and on the same day Ms Strachan sought some legal advice. Though there is no evidence as to whether she was told about time limited, Ms Strachan was cognizant at an early stage that she was able to make a claim.
In her 2024 statement, Mr Stiles said, Ms Strachan said that she had lodged a claim in respect of a shoulder injury with the same employer in 2005. Though there is not much detail, Ms Strachan thereby acknowledged that she was aware of the claims process and how to make a claim.
Mr Stiles said that I would not be satisfied that Ms Strachan could rely on the ground of ignorance in s 261(4) of the 1998 Act. Turning to the requirement that there be serious and permanent disablement, Mr Stiles took me to the discussion of relevant authorities referred to by Roche DP in Eason v Bluescope Steel Limited[1] (Eason) and said that there was evidence that once Ms Strachan had the proposed surgery, her symptoms would be alleviated. He said that the word disablement referred to the capacity to perform work.
[1] [2006] NSWWCCPD 265.
With respect to “other reasonable cause”, Mr Stiles referred to Albury Real Estate v Rouse[2] (Rouse) and said that in the circumstances where there was no explanation as to the advice Ms Strachan had been given in 2015, I could not be satisfied that there was objectively a reasonable cause. He said that Ms Strachan bore the onus of establishing the elements of s 261(4), referring to Hou v Zhen Qui Hou Pty Ltd[3] (Hou).
[2] [2006] NSWWCCPD 139.
[3] [2022] NSWPICPD 6.
Turning to the question of incapacity, Mr Stiles said that there was no evidence that Ms Strachan was incapacitated as a result of her injuries before her employment was terminated and, in particular, that there were no medical certificates. He said there was insufficient evidence to show that any change in the days she was working was the result of an injury. Dr Qurashi said in 2015 that she was fit for any duties she felt capable of. Ms Strachan’s employment was terminated in 2020 as a result of the COVID-19 pandemic.
Mr Stiles said that six months later in October 2020, the general practitioner’s records show that Ms Strachan was off work due to mental health issues rather than her knee injury. Dr Conrad’s report in 2023 provided some evidence that Ms Strachan was unfit for any work for which she had training or experience until she has undergone and recovered from surgery. Mr Stiles said that any award of weekly compensation would be limited to the first and second entitlement periods because she did not fulfil the requirements of s 38.

Ms Strachan in reply

Referring to Gregson v L & M Dimasi Pty Ltd[4] (Gregson) discussed in Eason, Mr Barter said that the question of serious and permanent disablement was determined at the time of making the decision. Because Mr Strachan was facing bilateral knee replacement, the condition was serious and it will lead to permanent disability which will impact on her ability to work. Mr Barter referred to Dr Morrison’s note on 14 September 2020 as to Ms Strachan’s anxiety and said it was corroborative evidence of her genuine belief that her job was at risk if she was to bring a claim.
[4] [2000] NSWCC 47; (2000) 20 NSWCCR 520.
Mr Barter said that the relevant ignorance in Ms Strachan’s case was the ignorance of her ability to bring a claim and keep her job.

Further submissions

In the submissions prepared in response to my direction dated 19 June 2025, Mr Barter said that Colourwise did not challenge Ms Strachan’s evidence about completing the Personal Injury Investigation Report and leaving it in the despatch office as Ms Galea asked her to do.
Mr Barter said that s 261(9) should be read in the context of s 261 as a whole and that the section was not entirely beneficial because it placed an obligation on a worker to make a claim and an onus to demonstrate that the claim has been made.
Mr Barter said that contrary to the balance of the section, s 261(9) cast a reciprocal obligation on an employer to act appropriately when notified of an injury and to keep the report of injury in a register of injuries. Ms Strachan complied with the obligation to formally report her injury. While the sub-section did not require an employer to keep a record formally entitled Register of Injuries, a record would satisfy the reciprocal requirement. Mr Barter said it was clear from the file records in the Reply that Colourwise kept a record of the injury and dealt with it as a potential claim for compensation. Mr Barter said that Ms Strachan had complied with the obligation cast on her and should be penalised by her employer’s failure to deal with the report of injury appropriately.
As noted above, Colourwise did not make any submissions in accordance with the direction dated 19 June 2025.

FINDINGS AND REASONS

Did the injury report constitute a claim for compensation?

Mr Barter’s primary submission was that the Personal Injury Investigation Report that Ms Strachan completed in December 2014 and provided to Colourwise was a claim for compensation. The form sought little information about the injury and is directed to recording details relevant to work health and safety considerations and identifying action to prevent recurrence. I am satisfied that the document provided notice of the injury.
Section 260 says that a claim for compensation must be made in accordance with the applicable requirements of the Workers Compensation Guidelines.
Section 261(1) provides that compensation cannot be recovered unless a claim “for the compensation” has been made within six months after the injury. Sub-section (3) provides that a person is considered to have made a claim when they have made a claim for any compensation.
The enquiry under s 261(1) is whether a claim for compensation was made, not the reasons for failing to make a claim. I accept the submission that a claim is a claim for any of the forms of monetary compensation payable under the 1987 Act.
Though Ms Strachan said in her second statement that her employer did not give her a worker’s compensation claim form, she did not ask for one or otherwise indicate that she wished to claim. Ms Strachan performed “light duties” for a few weeks but then returned to her normal duties. Over time she said that her condition deteriorated so that by about May 2015 she took a chair to work. She did not take any time off work or seek medical advice.
The first time Ms Strachan sought medical advice was on 22 June 2015, more than six months after the injury. Even at that time, she did not make a claim for any compensation, though Dr Crampton had recommended that she do so.
Mr Barter submitted that Mr Thompson of Colourwise thought that the Personal Injury Investigation Report was a claim because he sought advice from the insurer. The communications with the insurer did not occur until September 2015, about nine months after the injury, so that even if they constitute a claim, it was not made within six months of the injury. The emails were sent after Ms Strachan took a stick to work, was given a “warning” then stood down for a period and after Dr Qurashi certified that Ms Strachan was fit for any duties she felt capable of. The insurer provided some advice to Mr Thompson and informed him of circumstances in which he should provide notice of the injury. No claim for any compensation was made at that time.
I am not satisfied that Ms Strachan made a claim for any compensation within six months after the injury. She did not claim any compensation until 2021.

Register of injuries

Section 261(9) provides that where particulars of an injury are entered in a register of injuries kept under the 1998 Act, the making of that entry suffices as a claim for compensation for the purpose of the section. In those circumstances, sub-section (4) does not need to be satisfied.
The obligation to maintain a register of injuries arises under s 256 of the 1998 Act:
“256   Register of injuries
(1)     A register of injuries must be kept in some readily accessible place at every mine, quarry, construction site, factory, workshop, office or shop.
(2)     A worker employed at any such mine, quarry, factory, workshop, office or shop, or any person acting on the worker’s behalf, may enter in the register of injuries particulars of any injury received by the worker.
(3)     The regulations may prescribe the form of a register of injuries and the particulars to be entered in the register.
(4)     If particulars of an injury are duly entered in a register of injuries as soon as possible after an injury happened, the entry is sufficient notice of the injury for the purposes of this Act.
(5)     If subsection (1) is contravened, the manager of the mine or quarry, or the occupier of the factory, workshop, office or shop, is guilty of an offence…”
Clause 40 of the Workers Compensation Regulation 2016 provides:
“40   Form of register of injuries to be kept at workplace
(1)     The register of injuries required to be kept under section 256 of the 1998 Act may be kept in written or electronic form.
(2)     The register of injuries may be kept in electronic form only if the employer provides education, training and facilities to ensure that workers are able to access the register.
(3)     The particulars to be entered in the register of injuries are the following—
(a)the name of the injured worker,
(b)the worker’s address,
(c)the worker’s age at the time of injury,
(d)the worker’s occupation at the time of injury,
(e)the industry in which the worker was engaged at the time of injury,
(f)the time and date (or deemed date) of injury,
(g)the nature of the injury,
(h)the cause of the injury.”
While some of the particulars in cl 40(3) were not included on the Personal Injury Investigation Report completed by Ms Strachan, there was no doubt as to the identity of the person completing it so far as Colourwise was concerned. Details as to their age and address may be important to identify a worker in a large workplace. At its busiest times in spring and summer, Mr Strachan’s evidence is that Colourwise employed only 50 to 60 people. Ms Strachan had worked there since 1999.
The purpose of the form was not stated to be a register of injuries. The second part is directed toward collecting information to assist with preventing further injuries. However, the form is directed to collecting information about an injury which has occurred. It collects the kind of basic information that would be needed if a claim was subsequently made.
Ms Strachan said that she was asked to complete the form by Ms Galea and she left it where Ms Galea asked her to leave it. Her evidence is supported by Ms Galea. There is no evidence from Colourwise touching on the existence of the Personal Injury Investigation Report or how such forms were dealt with by it.
I am satisfied that the form constitutes a register of injuries. Ms Strachan therefore entered the particulars in a register of injuries kept by Colourwise and that s 261(9) applies to deem that entry a claim for compensation.

In the event that I am incorrect about the application of s 261(9), it is appropriate that I deal with the other arguments raised by the parties.

Section 261(4)

Mr Barter accepted that if the notice in December 2014 was not a claim, no claim made within three years of the injury so as to fall within s 261(4)(a).
Ms Strachan must therefore prove that the failure to make a claim for compensation within six months was occasioned by ignorance, mistake, absence from the State or other reasonable cause and that the injury has resulted in serious and permanent disablement. Ms Strachan said that the failure was occasioned by ignorance or other reasonable cause.
In Hou, Phillips P said that the worker bears the onus of proving that the failure within the relevant period in s 261 was occasioned by the mitigating factors in s 261(4).

Ignorance

In Gregson Burke CCJ said:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
In Rouse, Roche DP said:
“In G C Singleton & Co Pty Ltd v Lean (Seymour) [1970] ALR 129 (‘Seymour’) it was held that ‘ignorance’ will include the case where the worker does not know of the need to give the notice within the specified time. Seymour was applied to similar legislation by the South Australian Workers Compensation Tribunal in Zac Paul Williams v WorkCover/GIO Australia (Simar Transit Mixers) [1998] SAWCT 101 where Judge Cawthorne said:
‘In my view the failure on the worker’s part to make his claim within the prescribed period should not create a bar to the making of the claim. In reaching that conclusion to my mind two factors stand out. First until the worker saw Dr. Tolis in February 1997 and was told of the seriousness of his injury he had no intention of making a claim for compensation being under the misapprehension that his problem was only one of muscular strain which would eventually resolve. In the light of all of the evidence and in particular that of Mr. McCulloch that was clearly a mistaken view on the worker’s part. Second, although I am prepared to accept that the worker had some understanding of the compensation system having made earlier claims, I accept his evidence that he was not aware that a time limit existed for the making of a claim for compensation. In those circumstances it is my view that the failure of the worker to make a claim within the prescribed period was also occasioned by ignorance (G.C. Singleton and Co. Pty. Ltd. V. Lean (Seymour) 1970 A.L.R. 129) or mistake on his part.’”
The evidence does not support a finding that Ms Strachan was ignorant of her ability to make a claim for compensation in appropriate circumstances. She made a record of the injury. She said in her second statement that she suffered an injury to her shoulder in 2005 which resulted in treatment and absence from work. She was paid compensation and the process was straightforward. Her general practitioner’s notes refer to a claim in respect of her shoulder.
The evidence shows that Ms Strachan was aware of her right to claim compensation in respect of a work related injury.
Shortly after the expiration of the six month period and well within three years after the injury, Dr Crampton suggested Ms Strachan claim compensation. Dr Qurashi made a similar recommendation in August. Ms Strachan sought legal advice at that time but said that she did not obtain detailed advice or make a claim because she was worried about losing her job. As Mr Stiles submitted, there is no evidence as to the advice Ms Strachan obtained in August 2015. The fact that she sought advice suggests she was not ignorant of a right to claim compensation for a work injury.
Mr Barter said that the relevant ignorance was that Ms Strachan did not understand that she could make a claim and keep her job. While that is one of a worker’s rights under the legislation, there is no evidence that Ms Strachan was ignorant of that right. She had made a claim and retained her job at Colourwise in 2005.
I am not satisfied that the failure to make a claim was a result of ignorance.

Other reasonable cause

The “reasonable cause” relied on by Ms Strachan is the fear that if she made a claim for compensation that she would lose her job. The question of reasonableness is not measured by an objective view of a worker’s “mindset but objectively light of every circumstance in the case relevant to showing why the failure occurred” – Keating P in Jones v Qantas Airways Pty Ltd[5] (Jones) referring to Garrett v Tooheys Ltd[6] (Garrett).
[5] [2017] NSWWCCPD 11 at [82].
[6] (1949) WCR 80, 86-87.
In Rouse, Roche DP said:[7]
“The phrase ‘reasonable cause’ was considered in Garratt v Tooheys Ltd [1949] WCR 80 (‘Garratt’) at 86-7. In that case Judge Rainbow said at 86:
‘The next question is whether the applicant’s failure was occasioned by some reasonable cause. In its context, cause means the grounds which led the workmen to omit to claim. And the mixture of facts, circumstances and motive which constitute the explanation of the failure must be reasonable. It is sometimes argued that the reasonableness of the cause is only to be measured and considered from the viewpoint of the worker and reference is made for example to King v Port of London Authority [1920] AC 1 where Lord Atkinson at page 24 said: ‘Of course it is reasonable cause having reference to the workman himself’. If this argument means that the inquiry is to be limited to discovering whether the worker believed himself to be acting or thinking reasonably that is not the law: cf Brown v Aveling and Porter, (22 BWCC 165 at 169). It is not the worker who is to be reasonable, it is the cause. As Lord Birkenhead said in King v Port of London Authority, ‘the general atmosphere must always be considered’. The reasonableness is to be measured objectively in the light of every circumstance in the case relevant to showing why the failure to claim occurred: cf Atherton v Chorley Colliery Co Ltd (19 BWCC 314)’.”
Commenting on Garratt C P Mills said at page 468:
“The mixture of facts, circumstances and motive which constitute the explanation of the omission must be reasonable, considered from the view point of the worker not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself.”
In Garratt the facts were that the worker delayed in making his claim because he did not want to prejudice any retirement benefit he might receive from his employer. It was held that such a reason for delaying was not a ‘reasonable cause’ within the terms of the Act. The word ‘ignorance’ was not in the relevant legislation at that time.
And:
“In my view ‘other reasonable cause’ can be any other event, situation or circumstance that resulted in a claim not being made within six months of the date of injury. I agree with the comment by C P Mills that it is the ‘mixture of facts, circumstances and motive which constitute the explanation of the omission” that must be reasonable. If the explanation is ‘reasonable’ and if the failure to claim within six months was occasioned by that ‘cause’, then the subsection has been satisfied.’”
[7] At [30]-[32].
In Rouse, Roche DP accepted that the applicant had reasonable cause not to make a claim within six months after her husband’s death because of her own evidence that she was under pressure with business and personal commitments arising from her husband’s death, was not psychologically or emotionally in a position to consider or pursue a claim and she thought that she would not be entitled to compensation. The applicant’s evidence was supported by medical evidence.
The time limit in the section is six months. It is extended to three years if the mitigating factors in s 261(4)(a) arise and longer in cases of serious and permanent disablement. I must consider if there is evidence that Ms Strachan failed to make a claim within six months of the injury because of other reasonable cause.
There is no evidence as to reasonable cause within six months after the date of Ms Strachan’s injury. The events which caused Ms Strachan to fear for her job did not take place until August 2015, after the period had elapsed. Just over six months from the date of injury, Ms Strachan saw Dr Crampton and had an X-ray and MRI scan. In August the condition of her right knee worsened, leading to the meeting with Mr Thompson on 3 August and the first warning. Those events may have given rise to a fear about her job security but they did not occur within six months after the injury.
Ms Strachan said in her 2021 statement that she was deterred from lodging a claim because another worker “was having problems with the boss.” She did not prepare a statement in respect of Ms Catt’s claim until 11 February 2016 and said in her 2021 statement that when Ms Galea left in March 2015 and was replaced by Ms Catt.
I am unable to find that the failure to claim compensation was a result of other reasonable cause.

Serious and permanent disablement

In those circumstances, it is not necessary for me to consider serious and permanent disablement but I make the following comments in response to counsel’s submissions.
Section 261(4) does not require a finding that serious and permanent disablement was suffered within six months. It permits a claim to proceed more than three years after the injury if a worker suffers serious and permanent disablement. I interpret the section to require me to determine if serious and permanent disablement is suffered at the time the application under s 261 is considered. This is consistent with the way Keating P considered the section in Jones where the worker’s disablement at the time of the application was considered.
Mr Stiles said that the question of whether Ms Strachan suffered serious and permanent disablement turned on her capacity to perform work, relying on Eason. Based on the cases set out in that decision, I do not agree that the question of serious and permanent disablement is so limited.
Roche DP referred to the decision of the Court of Appeal in Broken Hill Proprietary Company v Kuhna[8] (Kuhna), concerning serious and permanent disablement in the context of s 14 of the 1987 Act, and Gregson. Roche DP noted that the worker in Kuhna was unfit for work as a result of his injuries for a period of about ten weeks then permanently unfit for work as a miner. Cripps JA said that disablement was to be understood in an employment context. Roche DP said:[9]
“Cripps JA then continued at 406B:
‘In the present case, there was evidence that the worker not only suffered an impairment but that that impairment affected his physical capacity to undertake work. The argument, as I understand it, on behalf of the employer is that the disablement cannot be said to be serious because, before such a finding could be made, it was necessary for the learned trial Judge to consider the whole range of the worker’s activity and, it is ubmited, that was not done.’
That submission by the employer was rejected on appeal. Cripps JA added that the fact that the worker may have been earning as much as he would have been earning had he remained an underground miner “did not mandate a conclusion that he had not been seriously and permanently disabled” (at 406G).
In a short judgment Mahoney JA agree with Cripps JA and added at 402B:
‘No doubt the word ‘disablement’ primarily refers to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is ‘serious’, the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively.’
Gregson concerned the meaning of “serious and permanent disablement” in section 65(13), though the consideration of the phrase by Judge Burke was strictly obiter. Nevertheless the facts and his Honours comments are instructive. At [78] his Honour said:
‘In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.’”
[8] (1992) 8 NSWCCR 401.
[9] At [25]-[29].
Roche DP agreed that a person can have permanent disablement without it being serious. He said:[10]
“I have carefully considered the Respondent Employer’s argument that Mr Eason’s complaints are not of great magnitude, have not prevented him from engaging in full time employment, and that he does not require ongoing medical treatment. These submissions ignore the fact that Mr Eason is now working in suitable employment, has a proven disc prolapse with objective evidence of nerve root irritability and radiculopathy, and that he has continuing back and leg symptoms which are aggravated with activity. Lack of regular treatment does not necessarily indicate that a disability is not severe. In respect of medication, it is relevant to note that Mr Eason stopped taking anti inflammatory medication because he developed an allergy to such medication…”
[10] At [40].
At the time Ms Strachan’s employment was terminated in 2020, she was working three days per week. She did not return to pre-injury hours or duties after 2015. She underwent a partial right knee replacement in 2018. While she may have suffered intercurrent mental health issues after the cessation of employment, that does not preclude a finding that she suffered incapacity as a result of another condition. The medical evidence is to the effect that the condition of Ms Strachan’s knees continued to deteriorate.
In 2021 Dr Gursel recommended a left total knee replacement and foreshadowed revision surgery on the right. He attributed the cause to the aggravation of degenerative arthritis in the fall in 2014. Mr Stiles submitted that the purpose of the surgery was to alleviate Ms Strachan’s symptoms so that there would no longer be serious and permanent disablement.
Mr Stiles also said that Dr Conrad’s evidence supported the conclusion that there was no serious and permanent disablement because he said that Ms Strachan would be fit for work when the surgery was finalised and she has made a good recovery. It does not necessarily follow that the surgery will lead to a good recovery. Dr Conrad did not say that Ms Strachan was likely to be fit for pre-injury duties but was considering “work for which she is suitable by way of experience and training.”
The Commission deals with many cases in which workers have undergone bilateral knee replacements and not had a good result. Even a good result from knee replacement surgery results in significant permanent impairment under the SIRA Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed. Experience in this jurisdiction teaches that a return to heavy physical work of the kind undertaken by Ms Strachan at Colourwise is unlikely after surgery of that nature.
I accept that Ms Strachan suffers serious and permanent disablement.

Incapacity

Though Ms Strachan claimed compensation from 2015, there is insufficient evidence in the file to allow an analysis of any entitlements before the formal claim was made in 2021. While Ms Strachan said that she reduced her hours, the few certificates which do appear in the ARD are not certificates of capacity. Dr Crampton provided certificates stating that Ms Strachan had no current work capacity from 25 January 2021. The fact that Ms Strachan had intercurrent medical conditions does not mean that she was not also suffering incapacity as a result of her knee injury. Dr Conrad did not consider that she had any current work capacity at the time of his first report in 2021.
Even after that date, there are some gaps in the medical certificates. However, the tenor of the medical evidence is that Ms Strachan has had no current work capacity since that date. I agree that there is no evidence that the requirements of s 38 of the 1987 Act have not been fulfilled so that the award must be limited to the duration of the first and second entitlement periods as defined in a 32A of the 1987 Act.
A list of payments in the Reply shows that Ms Strachan was paid weekly compensation from 19 March 2021 to 3 June 2021. The last payments were at the rate of $659.30, suggesting that was the indexed rate for 95% of pre-injury average weekly earnings.
The fact that Ms Strachan also sought treatment for her mental health after ceasing work does not preclude a finding that she had no current work capacity as a result of the injury to her knees.

Medical expenses

The claim in the ARD is limited to past medical treatment and the cost of a left total knee replacement. There is now no dispute that the proposed surgery is reasonably necessary medical treatment.
In the absence of a claim for proposed right knee surgery, the award is limited to past treatment expenses and the costs of the left total knee replacement.

Orders

For those reasons, I make the following orders:
(a) Colourwise is to pay Ms Strachan weekly compensation of $659.80 as indexed from 4 June 2021 until the end of the second entitlement period;
(b) I grant liberty to apply if the parties are unable to agree on the compensation payable as a result of order (a);
(c) Pursuant to s 60 of the 1987 Act, the respondent is to pay the applicant’s past medical, hospital and related expenses, and
(d) Pursuant to s 60 of the 1987 Act, the respondent is to pay the applicant’s costs of and incidental to left total knee replacement surgery.

[2025] NSWPIC 328

10 July 2025